Wilton and Leary and Anor

[2017] FamCA 221

FAMILY COURT OF AUSTRALIA

WILTON & LEARY AND ANOR [2017] FamCA 221

FAMILY LAW – CHILDREN – INTERIM ORDERS – Application by the father to suspend time with the grandparents and move with the child overseas – Where current consent orders provide for the grandparents to spend holiday time with the child – Where there is no guarantee the father would facilitate such time were the visits to take place overseas – Where there is no evidence which would allow a finding that it is in the child’s best interests to have no relationship with her maternal family – Application dismissed – Time with the grandparents in accordance with the consent orders ordered.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilton

RESPONDENTS: Ms and Mr Leary

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 4107 of 2012

DATE DELIVERED: 11 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Goldrick Farrell Mullan Solicitors

SOLICITOR FOR THE RESPONDENTS: KD Holmes Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the Application in a Case filed by the father on 29 March 2017 be dismissed.

2. That the father cause the child B born … 2010 to be delivered to the grandparents at 10.00 am on 19 April 2017 and thereafter in accordance with the Orders of the Court made 29 October 2013.

3. That in the absence of agreement, changeover is to occur at the McDonalds Family Restaurant on the corner of C and D Streets Suburb E

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilton & Leary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4107 of 2012

Mr Wilton

Applicant

And

Ms and Mr Leary

Respondents

REASONS FOR JUDGMENT

1. B (“the child”), who was born in 2010, was only two months old when her mother died. She has since lived with her father Mr Wilton (“the father”). The child and her father lived in Sydney.

2. The child’s maternal grandparents (“the grandparents”), Mr and Mrs Leary, who live in New Zealand, were respondents in proceedings brought by Ms F Leary in 2012. (I infer that Ms F Leary is the child’s aunt). In their response, the grandparents asked for orders that the child spend time with them. Those proceedings were settled by consent orders made on 29 October 2013 which provided for the child to spend time with her grandparents, such time to gradually increase. At the present time, the orders provide for the child to spend five consecutive days with her grandparents in each of the three mid‑term school holidays. The time is to be extended to overnight for two nights in two of the three holiday periods. The orders are silent as to where the time is to be spent. Every alternate year, the child is to spend time in New Zealand with her grandparents during the September school holidays for four consecutive days and nights.

3. The orders further provide that the grandparents will inter the child’s mother’s ashes and provide a place for the child to visit when she is older; that the father supply progress reports to the grandparents and that the grandparents have telephone time with the child. The orders contained a notation to the effect that the father would consider whether the time the child spent with her grandparents should be extended when the child is older.

4. In 2015, the father married Ms G and in May 2016, Ms G adopted the child in proceedings in the Supreme Court of NSW.

5. The father has filed an Initiating Application in a Case seeking to discharge the orders made on 29 October 2013 and substituting an order that the child spend time and communicate with her grandparents “as agreed between the parties in writing”.

6. On 23 November 2016, the father filed an Application in a Case seeking to suspend the 2013 orders. He further filed an  Application in a Case on 7 March 2017 and then an Amended Application in a Case on 29 March 2017, seeking the following orders:

   1.Pending further Order, the Orders of 29^th October 2013 be suspended.

   2.In the alternative, the Orders of 29^th October 2013 be suspended insofar as they apply to the school holidays at the end of Terms 1 and 2 in 2017.

   3.The listing of the child [B] on the Airport Watch List…be lifted.

   4.That pursuant to section 65Y and/or 65Z of the Family Law Act 1975 (Cth) that the father be permitted to take [the child] from the jurisdiction of Australia.

   5.That the Respondent Maternal Grandparents pay the father’s costs…

7. It is that application which was listed for hearing in the duty list before me on 5 April 2017.

8. An Independent Children’s Lawyer (“ICL”) has been appointed for the child and appeared.

9. In an affidavit sworn 6 March 2017, the father deposed that he has secured employment in Asia starting on Monday 10 April 2017. He intends to leave Australia to take up that position, with or without the child. Ms G has employment in Asia from August 2017.

10. The father and Ms G intend to move to Asia permanently.

11. Thus the effect of the father’s application is that, if he is successful, the child will move permanently to Asia.

12. The grandparents have given notice to the father that they will travel to Australia to spend time with the child in the April school holidays, commencing on 19 April 2017.

13. The grandparents submit that, having regard to the father’s past actions, the Court would be satisfied that, if the child moves to Asia, they will have no further relationship with her.

14. There are interim proceedings and, where there are issue of fact, it is not possible to make any determination.  

15. On 10 August 2016 the father was found to have contravened the orders for the child to spend time with her grandparents on “multiple and various occasions between 7 July 2014 and 18 July 2015.” The contraventions included cutting short the child’s time with her grandparents; failing to facilitate overnight time in accordance with the orders; failing to facilitate time in New Zealand in accordance with the orders on two separate occasions and failing to facilitate the child’s spending time with her grandparents in Sydney. The findings of the Court in relation to the contraventions are fully set out in the judgment of Judge Monahan of the Federal Circuit Court of 10 August 2016.

16. On 16 August 2016, Judge Monahan delivered his judgment in relation to penalty. The father was ordered to enter into a bond for a period of 12 months in the sum of $10,000, without security, to be of good behaviour and comply with the current orders. In addition, he was ordered to attend a parenting program, compensate the grandparents for their expenses incurred as a result of the contraventions and pay their costs in relation to the application.

17. Subsequently the father was ordered to pay $15,000 in costs.

18. The grandparents allege that there have been further breaches of the orders.

19. They allege that in anticipation of the July and September school holidays in 2016 their solicitor wrote to the father’s solicitor advising the dates they proposed to be in Australia in July and the dates they proposed the child should travel to New Zealand in September. On 10 August 2016, the father’s solicitor responded:

    As [the child] is under a no fly watch list and that the hearing will be occurring on 16 August 2016 our client could not confirm September/October 2016 visits in New Zealand.

20. The grandparents forwarded statutory declarations to the father’s solicitor so that the child could be removed from the Airport Watch List to travel to New Zealand.

21. On 20 September 2016, the father’s solicitor forwarded to the grandparents a report of a doctor advising that the father had undergone surgery. The grandparents asked if Ms G could bring the child to New Zealand. In the alternate they proposed other relatives who could accompany the child. The father’s solicitor responded that the proposals were “Outside the scope of the current orders and are not consented to”.

22. The child did not travel to New Zealand in September 2016 in accordance with the orders.

23. In September 2016 the father and Ms G sold their home in Sydney. The husband deposed:

    We maintain our desire to move with the child to [Asia] and accordingly made the decision that whilst matters were before the Court, we would as a family unit take the opportunity whilst I was awaiting further employment to provide to the child the benefit of travelling around and spending time in different parts of Australia prior to moving to [Asia].

24. In October 2016 the husband, who was self-employed, sold his business.

25. The husband deposed that since 31 October 2016, he has had “no fixed place of abode”. The child was enrolled in distance education and is being home schooled. It is not clear where the child has lived but the father deposed to living in Perth and in H Town. His affidavits also refer to living in Albany and Bunbury. He deposed that Ms G, who is a health professional, proposes to seek work in “rural and regional Australia”. In his affidavit sworn 23 November 2016 the father deposed to an intention to travel “around Australia via [H Town], [I Town], Darwin and [J Town] returning eventually to Sydney to finalise the litigation to enable the family to relocate to Asia”.

26. In November 2016, the grandparents’ solicitor wrote to the father’s solicitor, nominating dates they would be in Sydney in January 2017.

27. On 23 November 2016, the father filed an Application in a Case to suspend time with the grandparents.

28. That application was heard on 5 December 2016. The Court ordered that the child be delivered to a nominated address on three consecutive days commencing 16 January 2017 in order to spend time with the grandparents.

29. During her time with the grandparents in January 2017, the child variously said to her grandparents:

    “I cant (sic) go to school in [Asia] because you have me on airport watch”; and

    “My daddy said you are spending his money”; and

    “Por Por ([the child] calls her grandmother “Por Por”) why can’t you visit me in [Asia]?”

30. On 21 February 2017 the following orders were made:

    1.The substantive proceedings be expedited and the matter be listed for a first day LAT as soon as practicable but in any event leave is granted to the Independent Children’s Lawyer to approach the chambers of Justice Loughnan with a Minute of Consent Orders in relation to expert evidence in parenting proceedings between the parties.

    2.Any application by the father to suspend the current orders be filed and served within 14 days from today’s date.

    3.Leave is granted for that application, subject any directions the Senior Registrar might make, to be listed before the Senior Registrar on 29 March 2017.

    4.Any affidavit and Response to that application in a case, be filed on behalf of the maternal grandparents not later than 21 March 2017.

31. The father filed the Amended Application in a Case to which reference is made at paragraph 6,of these reasons.

32. On 11 March 2017, during a telephone conversation, the child said to her grandmother:

    Why are you stopping me from going to [Asia]. You have to give my daddy the GREEN LIGHT to go to [Asia]. You are spending my daddy’s money. I am not going to come to Sydney.

33. The grandmother told the child that her aunty was coming from the UK to see her in April. the child said:

    She is not my auntie. You are not my grandparents. You are not my family. I need a green light to go to [Asia]. I am going now, bye.

34. The 2013 orders provide that the child is to spend time with the grandparents, including two overnight stays, in the April 2017 holidays. They have given notice that they will be in Sydney on 19 April 2017 to commence the visits, and have purchased their tickets.

35. The child’s aunt has purchased a ticket to fly to Australia from London, arriving in Sydney on 11 April 2017.

36. Before me, counsel for the father submitted that the grandparents could spend time with the child in Asia during the April 2017 holidays and the June/July school holidays rather than in Sydney.

37. I regard that statement as disingenuous.

38. The father has strenuously opposed the child spending time with the grandparents.

39. His substantive application seeks no order for face to face time for the child with her grandparents other than as agreed in writing.

40. The father’s Application in a Case filed 23 November 2016 sought to suspend the child’s time with the grandparents. His Amended Application in a Case filed 29 March 2017 sought to suspend time for the holidays at the end of Terms 1 and 2 of 2017. There is no application by the father before the Court which would provide for the child to spend time with her grandparents.

41. The father’s attitude to the child spending time with the grandparents is made clear in his affidavits filed in the course of the proceedings.

42. In his affidavit sworn 6 March 2017 the husband referred to the “highly toxic” relationship with the grandparents. He expressed the view that “[m]aintaining the current orders would in my view only lead to the risk of the child’s best interests being jeopardised”. 

43. In an affidavit sworn 23 November 2016, the father, referring to his obligation to provide reports to the grandparents, deposed “[o]n an ongoing basis, I see this reporting to [the grandparents] … as the appropriate level of communication for the foreseeable future”. He also deposed:

    I am very concerned that if [the child] spends time again with the [grandparents], she will be exposed to their views and attitudes which are not consistent with our family, and she will be caught in the middle of a conflict and could develop divided loyalties. This would not be in her best interests. However, I would be prepared to maintain some form of relationship [with the grandparents] whilst [the child] grows and matures by way of updating the [grandparents] as I have previously…  

44. He further deposed:

    …I want to shield [the child] from the tension and hostility that exists between the [grandparents] and me. I do not want her exposed to two different parenting and family ways of life…

45. In the same affidavit he deposed:

    I do not feel that [the child’s] emotional, and at times physical safety can be guaranteed if she has face to face time with the [grandparents] alone. 

46. Ms G, in an affidavit sworn 23 November 2016, deposed:

    Having regard to my professional training and experience as a [health professional], and observing first hand the child’s response to face to face time with the [grandparents], as well as [the father’s] stress and anxiety and how same impacts on his role as the child’s father, I am firmly of the view that the current Orders should be suspended.

47. Counsel for the father did not explain why, having regard to those statements by the father and Ms G, it was now appropriate that the grandparents spend time with the child, provided that this occurred in Asia.

48. The father offered to lodge $10,000 with his solicitor to be released to the grandparents on application to the Court if they were not permitted to spend time with the child in Asia. That offer is meaningless. A sum of $10,000 would not be sufficient to fund any Court proceedings that the grandparents would institute if the father fails, as he has done in the past, to comply with the orders.

49. It may be that the father would be prepared to lose $10,000 in order to achieve his goal of living with the child in Asia. That would be a much lesser financial cost than proceeding to trial. The father could not be compelled to return to Australia for a final hearing.

50. It is highly likely, having regard to the father’s evidence set out above, that, if the child is permitted to leave Australia and live in Asia, she will have no further contact with her grandparents. There is no suggestion that the father will foster contact with any other members of the maternal family and thus the child will lose all contact with her mother’s family of origin and her maternal heritage.

51. There is presently no evidence before the Court which would allow a finding that it is in the child’s interests that she have no relationship with her maternal family. That is a matter that can only be determined at a final hearing with the assistance of expert evidence and cross-examination. The matter has already been expedited and has now been listed for final hearing on 24 July 2017, for four days.

52. The father’s interim application to suspend the time the child spends with her grandparents and move with the child to Asia will be dismissed.

53. The remaining issue to be determined is where the child and her grandparents will spend time.

54. The grandparents have already purchased their tickets to Sydney. All the previous occasions of time with the child have occurred in Sydney. The child’s aunt has arranged to travel to Sydney to take part in the visits and the grandparents, and therefore the child, have other relatives in Sydney who have participated in the past.

55. On behalf of the father, it was submitted by counsel, that the visit should occur in H Town if it could not occur in Asia. That is not, however, his application.

56. Having regard to the contents of Ms G’s affidavit, I have no more confidence that, if the grandparents travel to H Town, the child will spend time with them, than I had in relation to the proposal that the grandparents travel to Asia.

57. The orders will require that the child be made available to spend time with her grandparents in Sydney in accordance with the orders of 29 October 2013. There is no agreement about an appropriate changeover venue. The father formerly lived in the inner west. Changeovers in the past seem to have occurred in the Suburb E area. The parties can, of course, agree on any appropriate venue but in the absence of agreement changeover will occur at the McDonalds Family restaurant at Suburb E on the corner of C and D Streets at the times specified in the orders made 29 October 2013.  

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 April 2017.

Associate: 

Date:  11/4/2017